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[2011] ZALCJHB 6
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Du Plessis v Commission for Conciliation Mediation and Arbitration and Others (JR 2676/08) [2011] ZALCJHB 6 (15 February 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
CASE NO: JR
2676/08
In
the matter between
C
P C DU PLESSIS
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
1
st
Respondent
K
S NTSUMELA
N.O.
2
nd
Respondent
MESSINA
PLATINUM MINE LTD t/a LONMIN PLATINUM (LIMPOPO DIVISION)
3
rd
Respondent
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
The
applicant in this matter was employed as a boilermaker by the
respondent. He was involved in a motor vehicle accident which
resulted in injuries to his neck. The accident did not take place at
work. As a result of the accident he suffered a significant
degree
of physical impairment and an enquiry was scheduled into his
incapacity by his employer. The applicant claims that prior
to the
enquiry the employer had referred to the fact that it would assist
him in pursuing a disability claim with his insurers,
Metropolitan
Life. On 11 December 2007, the employer terminated the applicant’s
services on the basis that he was medically
unfit to continue
working as a boilermaker whether he performed his duties underground
or on the surface.
The
applicant claims that he did not agree with the employer's finding,
but says that while his insurance claim on Metropolitan
was being
considered he was advised not to refer a dispute over an unfair
dismissal claim to the CCMA because that might prejudice
the
insurance claim. He claims that he was "
under the impression
that the third respondent would assist me with this claim, and in
the event of my claim not been successful,
I would be allowed to
continue with my duties, or be it [albeit] in a more protective
surroundings.
"
As
matters turned out the insurer rejected his claim for disability
benefits and the applicant sought re-employment with the third
respondent, but the third respondent would not re-engage him. In
consequence, the applicant referred a dispute over his alleged
unfair termination for incapacity to the CCMA. By the time the
referral was served on 28 August 2008 it was seven months overdue,
necessitating an application for condonation.
The
condonation ruling
the
second respondent, a CCMA Commissioner, dismissed the condonation
application. In his ruling the Commissioner highlighted
the
following points:
The
applicant failed to address him on the question of the degree of
lateness.
It
was common cause that the applicant was advised to approach the
CCMA within 30 days of termination of his services in the
event
that he was not happy with the outcome of the hearing. However it
was only on 8 April 2008 that he first approached lawyers
for
assistance.
The
applicant's explanation for the late referral was “unsustainable
and irrational”, given that he had the services
of his
lawyers and a union (Solidarity) at his disposal, and that he was
fully aware that he needed to refer the matter to
the CCMA within
30 days of the termination. The Commissioner found it was
"abundantly clear" that the applicant had
been seeking
the payment of the lump sum insurance benefit from Metropolitan and
showed no interest in pursuing his claim to
CCMA until the
insurance claim was declined.
The
Commissioner clearly found it incredible that the applicant, who
was represented at the time, would have signed a
blank
copy
of the respondent’s Incapacity Enquiry form as he claims.
On
the question of prejudice, the fact that the company would be
unable to locate some of its former employees to come forward
and
testify, and the delay in the dispute, plus the administrative and
financial burden to place on it were factors that had
to be
considered.
Not
only did the applicant co-operate with the enquiry but the Enquiry
form was signed as a confirmation of the procedure followed.
Grounds
of review
Essentially,
the applicant only puts forward two grounds of review. The first is
that the Commissioner misdirected himself in
finding that neither he
nor his lawyers addressed the Commissioner on the degree of
lateness. Secondly, the applicant submits
that the Commissioner over
emphasised the degree of lateness and did not attach proper weight
to the other factors before him,
namely the reasons for the
lateness, the applicant's prospects of success and prejudice to the
parties. The applicant did not
supplement his grounds of review when
he filed his notice in terms of rule 7 A.
On
the first ground of review, it must be said that there is little
evidence on the record to support the applicant’s complaint
that the Commissioner misdirected himself on the question of whether
or not the applicant addressed the degree of lateness of
the
referral. Neither the founding affidavit of the applicant nor the
transcribed commissioner’s notes of the condonation
hearing
indicate that this matter was addressed by the applicant or his
representative. Be that as it may, the degree of lateness
is
essentially something that is self evident and simply a matter of
calculation. It is true that the arbitrator appears to have
taken
this into account in his ruling, but it does not appear to have been
decisive in his evaluation of the application.
It
is also not a fair reflection of the condonation ruling to suggest
the Commissioner only considered one issue. He considered
both the
merits of the applicant's claim, the relative prejudice to the
parties if the matter proceeded and the reasons for the
delay. If
anything weighed heavily with the Commissioner, two issues seem to
have featured prominently in his thinking. The first
was the fact
that he found the applicant must have been aware of the need to
refer the matter to the CCMA within 30 days of the
outcome of the
enquiry. Secondly, he found it implausible that the handwritten
record of the enquiry entered on the pro forma
enquiry document,
which the applicant and his representatives signed, was not a true
reflection of what transpired.
The
arbitrator also considered the relevance of a report from the
company’s doctor dated 6 December 2007 a few days before
the
enquiry. The form completed by the doctor was entitled "job
placement". It records that the applicant was suitable
for
"
permanent placement to suitable surface occupation
".
The doctor’s diagnosis was that the applicant's C 5/C 6 and C
6/C 7 joints of his vertebra had been fused. In the
comment section
of the form the doctor wrote as follows "
Can be fit for
boilermaker surface, 32 kg waist height, 10 kg elbow height, 8 kg
above shoulders for simultaneous handling by
both arms.
"
(
sic
)
The
handwritten record of the hearing records various responses of the
applicant. One of the questions he was asked was if he
had any
objections based on the nature of the enquiry. He replied that he
did not, but wanted to know whether it had anything
to do with the
fact that he was previously a foreman. Various medical reports were
tabled and the employee was asked to address
the chairperson on the
merits of his case. The recorded response reads: "
I agree
with the reports from the medical persons. There is no difference in
the physical work of boilermaker whether on surface
or underground.
I am in agreement that I'm not fit to work.
"
The
form then records the deliberations of the chairman. In summary, he
concluded that the applicant could not perform the duties
of a
boilermaker either on the surface or underground because it could be
life-threatening if he were injured again and the work
required him
to handle heavy materials. Furthermore the applicant’s duties
could not be adapted. The chairperson also found
that if there were
other positions that became available he could apply for them but
there were none available at the time of
the hearing. The hearing
then resumed with the applicant and his representative present and
they did not appear to make further
material inputs. The chairperson
then concluded that the applicant’s services should be
terminated due to ill-health.
Clearly
the conclusion of the enquiry appears to be at odds with the medical
report of the company doctor. However, it must be
noted that the
company doctor only suggested that the applicant could perform
surface duties as a boilermaker within certain
prescribed weight
parameters. The enquiry record indicates that the applicant's work
could not be adapted, presumably to satisfy
these requirements.
Moreover, and very tellingly it seems the applicant himself was not
interested in alternative employment
and was of the view that there
was no difference between underground and surface work as a
boilermaker. Accordingly, he saw himself
as unsuited for either
role.
It
may have been that the applicant had his eye on a possible
disability claim at that stage, but there is nothing on the enquiry
record to suggest that this was canvassed with him and could have
acted as an inducement for him to disavow his ability to do
any kind
of work. Even on his own version, the question of a lump sum
disability claim was only raised after the outcome of the
enquiry.
Clearly the applicant's most serious difficulty with his case is
that there is no reason to believe that he in any way
contested his
apparent inability to perform the duties of a boilermaker, and he
did not ask for his duties to be adapted so that
he could perform
the tasks within the parameters set out by the company doctor.
It
appears that when the applicant's insurance claim for disability
benefits was rejected, he appealed against the decision with
his
former employer’s assistance, but he was unsuccessful. There
is nothing indicating that the applicant took the insurance
claim
further by referring a complaint to the Short-Term Insurance
Ombudsman. Instead, he belatedly brought an unfair dismissal
claim.
What
emerges from the above is that the available evidence strongly
suggests that the applicant concurred with the company about
his
inability to perform any kind of boilermaking work and there is
nothing shows, nor did he claim to have made any representations
to
adapt his work so that it would still be possible for him to work.
The applicant now seeks to hold the company responsible
for coming
to a conclusion that he agreed with the time. As the arbitrator put
it, “
(u)ntil his claim was declined, the Applicant did not
demonstrate a willingness to pursue his case to the CCMA.
"
The arbitrator found that the applicant had co-operated throughout
the enquiry. Obviously this affects the merits of his
claim to have
been unfairly dismissed and in the circumstances the Commissioner
cannot be said to have acted unreasonably in
effectively finding no
merit in the applicant's claim.
In
conclusion, I am satisfied that the Commissioner did canvas all the
material issues he should have, even though he might not
have set
these out distinctly in his ruling. The evaluation he made is not
one that no reasonable Commissioner could have arrived
at. He may
have emphasised the failure of the applicant to address the degree
of lateness of the referral, but that does not
detract from the
balance of his reasoning on the other factors he had to consider.
Order
In
the light of the above analysis, the application to review and set
aside the second respondent’s condonation ruling is
dismissed.
No order is made as to costs.
ROBERT LAGRANGE
JUDGE OF THE
LABOUR COURT
Date of Hearing:
23 September 2010
Date of Judgment:
15 February 2011
Appearances
For the
Applicant: Mr Gerber, (
pro
bono
)
instructed by OJ Botha Attorneys
For the
Respondent: Mr Ramotlou of Maserumule Inc.